Hammon v ASKO Appliances (Aust) No 2 (Costs) - [2025] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation: Hammon v ASKO Appliances (Aust) No 2 (Costs) [2025] NSWSC 896
Hearing dates: In chambers
Date of orders: 11 August 2025
Decision date: 11 August 2025
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Confirm the provisional costs order.
(2) Order (2) made on 17 July 2025 is amended to delete the words “subject to the contents of paragraph [42] of this judgment”.

Catchwords:
CIVIL LAW – legal costs – provisional costs order made against plaintiffs – where plaintiffs’ application for leave to rely on expert evidence granted despite late service and failure to comply with case management orders – where parties afforded opportunity to make submissions for different costs orders – opportunity taken – surprise to nobody – where provisional order against the general rule that costs follow event – whether it appears that some other order should be made – relevant considerations – costs order confirmed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Anthea Hammon v ASKO Appliances (Aust) Pty Ltd [2025] NSWSC 766
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Wang v Fan (No 2) [2025] NSWSC 751

Texts Cited:
N/A

Category: Procedural rulings
Parties: Anthea Patricia Hammon (First Plaintiff)
Ian Jay (Second Plaintiff)
ASKO APPLIANCES (AUST.) PTY. LTD. (Defendant)
Representation:
Counsel:
S Ahmed (Plaintiffs)
D Kelly (Defendant)
Solicitors:
Ligeti Partners Lawyers (Plaintiffs)
Gillis Delaney Lawyers (Defendant)

File Number(s): 2023/00059965
Publication restriction: N/A

JUDGMENT

On 17 July 2025, on the plaintiffs’ application, I granted leave to the plaintiffs to rely on the expert report of Marty Denham in the forthcoming hearing of a case in which the plaintiffs seek damages arising from the damage or destruction of their house by a fire alleged to have been caused by a fault in an appliance provided by the defendant: Anthea Hammon v ASKO Appliances (Aust) Pty Ltd [2025] NSWSC 766 (“Hammon v ASKO”). The application was opposed by the defendant. The circumstances and submissions of both parties can be seen in Hammon v ASKO.
I indicated a provisional costs order, namely that the plaintiffs pay the costs of and incidental to the notice of motion but, at [42], afforded the parties the opportunity to make short written submission if they sought to urge a different order for costs. In a surprise to nobody familiar with the background to the matter or the conduct of the motion and the proceedings more generally, the plaintiffs availed themselves of that opportunity.
I received brief and helpful written submissions by counsel for both parties and have considered those submissions.
The plaintiffs submit that the costs should follow the event in the usual way, noting (correctly) that the “event” in this instance is their successful application for leave which was achieved over the defendant’s objection. That is, the order should be that the defendant pay the costs of and incidental to the notice of motion. In the alternative, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 896
Decision Date: 11 August 2025

CaseChat Overview and Summary

The case of Hammon v ASKO Appliances (Aust) No 2 involves the issue of legal costs following a provisional costs order made against the plaintiffs. The plaintiffs, Hammon, had their application for leave to rely on expert evidence granted, despite the late service of that evidence and a failure to comply with case management orders. Both parties were provided with an opportunity to make submissions on what costs orders should be made in the circumstances. The plaintiffs' opportunity to make submissions came as no surprise. The court was required to determine whether, given the exceptional circumstances, the provisional costs order against the general rule that costs follow the event should be confirmed.

The court considered whether it appeared that some other order should be made in light of the circumstances. In making its decision, the court took into account the need to balance the interests of both parties, the fairness of the situation, and the precedent that might be set by varying the general rule of costs following the event. The court held that the plaintiffs' conduct warranted a costs order against them, and that the provisional order was appropriate given the circumstances. The court concluded that the exceptional circumstances justified a departure from the general rule and confirmed the provisional costs order.

The court's decision was grounded in the need to maintain the integrity of the legal process, while also considering the specific facts of the case. By confirming the provisional costs order, the court upheld the principle that parties should comply with procedural requirements and case management orders, while also acknowledging the exceptional nature of the circumstances in this case. The court's final orders confirmed the provisional costs order against the plaintiffs, reflecting the balance between the need for procedural compliance and the exceptional circumstances of the case.

Orders